WORKFORCE TRAINING & HIRING PROGRAM ADMINISTRATIVE RULES
Administrative Rules Adopted by the Procurement Services Division Pursuant to Rule-Making Authority
TABLE OF CONTENTS
Section 1 Purpose
Section 2 Bureaus Affected
Section 3 Definitions
Section 4 Authority and Program Conditions
Section 5 Exemptions
Section 6 Subcontracting
Section 7 Job Classifications
Section 8 Apprenticeship Program Alternatives
Section 9 Liquidated Damages
SECTION 1– PURPOSE
These rules are intended to:
Establish rules and procedures for implementing the provisions of the Workforce Training & Hiring Program (WTHP) adopted in 1997 that integrates social equity, based on the principle that certain City Contractors and their subcontractors will comply with all applicable laws and regulations in their business activities, promote social justice and better working conditions and provide clear guidance to entities seeking to comply with these requirements.
SECTION 2– BUREAUS AFFECTED
All city bureaus engaged in construction contracting.
SECTION 3– DEFINITIONS
3.1 BOLI The State of Oregon’s Bureau of Labor and Industries
3.2 Bureaus: All City bureaus who perform construction contracting.
3.2 Division: The Procurement Division
3.3 City: The City of Portland, Oregon. The term “City” also includes other jurisdictions who have adopted the Workforce Training & Hiring Program as part of their contract and who have an Agreement with the City that permits the City to provide administrative services in support of their Workforce Training & Hiring Program.
3.4 Contract: Legally binding written documents executed between the City and a Contractor that describe the work to be done, specify the obligations of the parties, and which contain the City’s Workforce Training and Hiring Program requirements. The term “contract” includes any subsequent modifications and change orders to the original contract.
3.5 Contractor: Any person, vendor or entity of any type that executes a contract either with the City, or which a prime contractor that has executed a contract with the City, and who is required by the terms of the contract to comply with the City’s Workforce Training & Hiring Program.
3.6 EEO: Equal Employment Opportunity.
3.7 Exemption: An exemption is a temporary waiver of contract requirements that can only be provided in writing. However, an exemption ceases the moment the reason behind the exemption no longer justifies its continuance.
3.8 Open Shop Contractor: A Contractor who has not signed a collective bargaining agreement with its workforce.
3.9 First Tier Subcontractor: A Contractor who has executed a contract with a prime contractor to perform work on a City project.
3.10 Second Tier Subcontractor: A Contractor who has executed a contract with a first tier subcontractor to perform work on a City project.
3.11 Training Agent: A Contractor who has been certified as a registered Training Agent by BOLI.
3.12 Workforce Training and Hiring Program (WTHP): That portion of a City Contract that requires a Contractor to make reasonable efforts to have a workforce that reflects the diversity of the City of Portland and which is labeled as the Workforce Training and Hiring Program.
3.13 Work Day: Any and every day shown on the calendar, excluding Saturdays, Sundays and Legal Holidays as set forth in ORS 187.020.
SECTION 4– AUTHORITY AND PROGRAM CONDITIONS
4.1 Requirement for Participation in Program
All contractors working over 300 hours are subject to the contractual requirements of the Workforce Training & Hiring Program.
4.2 Aspirational Goal
An aspirational goal of 18% for minorities and 9% female has been set on City funded construction projects for apprentices and journey level workers. The City will
review these goals annually.
Except for the Exemptions included in this document, Procurement Services may, in its discretion, exempt certain contractors from the requirements of all, or a
portion of, the Workforce Training & Hiring Program. No exemption otherwise available shall be granted if it appears that work has been subcontracted for the
purpose of avoiding program requirements.
4.4 Prime Contractors Workforce
Contractors whose workforce consists only of supervisory personnel are exempt from complying with that portion of the program directed to the contractor’s own workforce, but are required to comply with other portions of the program. Therefore, this limited exemption does not relieve a prime contractor’s subcontractors from complying with the requirements of the City’s program if it is otherwise applicable to them. Similarly, this limited exemption does not relieve a prime contractor from ensuring that its subcontractors comply with the program.
4.5 Workforce Plan
Contractors are required to submit a workforce plan for subcontracts of $100,000 or more and prime contracts of $200,000 or more. This plan should detail their approach and strategies to achieve the targeted workforce goals established by the City. This plan should be a contract exhibit and reviewed at the end of the contract for compliance.
4.7 Training Agent
A Contractor is not required to register with BOLI as Training Agent if Apprentices cannot be hired under BOLI regulations for any work that it is going to perform on a project. However, the Contractor is still required to comply with the remainder of the Workforce Training & Hiring Program, including but not limited to, requirements for having a diverse workforce, reporting, recruitment, hiring and ensuring that subcontractors comply with the program.
4.8 Training Deemed Inappropriate
In limited situations, the Compliance Specialist may decide that portions of a project are inappropriate for training. Circumstances that may lead the Compliance Specialist to conclude that training is inappropriate include, but are not limited to, work that is dangerous, work where the number of workers involved does not permit adequate training, or high skilled work combined with a lack of qualified apprentices.
4.9 Training Program Non-existent
If the Contractor employs workers for whom no state-registered training program exists, a comparable program of training may be substituted by the Contractor if the Divisions Workforce Coordinator approves of the substitution. As used in this subsection, a “comparable program of training” must include, at a minimum:
A. Performance of the Contractor’s other obligations, if any, under the WTHP.
B. Recruitment of a diverse workforce
C. Structured On-the-Job Training with related classroom training
D. Other actions, as determined by the Divisions Compliance Specialist, to make the Contractor’s obligation similar to that of a contractor who would be subject to all the requirements of the City’s program.
4.10 Open Shop Training Program Non-existent
When no open shop training programs exist, open shop contractors may meet some of the requirements of the WTHP by registering as an open-shop training
agent, providing on the job training for apprentice(s), and purchasing related training from the union apprenticeship program.
4.11 Training Program for Persons with Disabilities
A Contractor that also is a “qualified nonprofit agency for the blind” or “qualified nonprofit agency for other severely handicapped” persons, pursuant to the
Javitts Wagner O’Day Act, Public Law 92-28, may substitute their specialized training program for the state-registered apprenticeship program if i) they
have an agreement with an open shop or union training program to provide job skills to persons with disabilities, ii) the contractor provides evidence that
the program does not discriminate against minority or female applicants, and iii) the contractor demonstrates that it has made affirmative efforts to include
minority and female applicants in its training program.
4.12 Good Cause
For good cause shown, in rare, unique, unusual or emergency circumstances, the Workforce Coordinator may, but is not required to, exempt a Contractor
from part or all of the WTHP, and impose conditions under which the exemptions may be granted.
4.13 Post Contractor Report
The City will establish a post project contractor report that provides details of utilization of state certified firms, minority and women workforce participation,
and construction manager project review.
SECTION 5 – EXEMPTIONS
Contractors shall base their bids on compliance with the WTHP. The City will not authorize change orders or contract modifications or incur additional costs if a Contractor fails to anticipate costs of compliance with the Program.
All requests to exempt all or any portion of the work on a project shall be submitted to the Compliance Specialist as outlined in the Workforce specifications. Exemptions may be granted during the course of the project under rare circumstances or when changes or conditions have presented themselves while work is progressing. The request shall be in writing and include all information necessary for the Workforce Coordinator to determine whether the exemption should be granted. If sufficient information is not provided, the Workforce Coordinator may deny the request or ask for additional information, at its option.
5.2 Requests for exemption due to schedule variances will not be granted, for example, if you are working a schedule where you will be on site for one week, then off for two weeks, and then back for two weeks, no exemption will be granted.
5.3 Exemptions are granted by written notification only; oral exemptions do not exist. In the event that a Contractor believes that an exemption will be granted,
but fails to receive official confirmation in writing, Contractor shall bring this matter to the immediate attention of the Division’s Workforce Coordinator.
5.4 Exemptions are not transferable to another Contractor. If a Contractor who obtained an exemption is replaced by another Contractor, the replacement Contractor is likewise required to seek an exemption before beginning work.
5.5 Revocation of Exemption; Effect
The Compliance Specialist may revoke an Exemption if it finds that the reasons justifying it no longer exist or never existed. If the Compliance Specialist decides to revoke an exemption, it shall notify the Contractor of its decision in writing. If the City finds it was misled about the reasons for the exemption, the revocation is effective from the date the exemption was first granted. Otherwise, the revocation is effective from the time that the facts justifying the exemption ceased to exist.
The City may provide the Contractor with notice that it is has failed to comply with the requirements of the WTHP. Failure to provide such notification, however, does not prevent the City from enforcing any contractual remedy to which it is entitled, since Contractors have previously been informed of program requirements in the contract documents.
If an exemption is revoked and the Contractor has failed to comply with the WTHP, the City may impose liquidated damages from the effective date of the revocation or take any other action permitted by the Contract.
Any claim by a Contractor that it should not be subject to liquidated damages or other contractual remedies shall be processed in the manner of other claims for damages as provided in the City’s Standard Construction Specifications or by any other applicable contractual procedure.
SECTION 6 – SUBCONTRACTING
6.1 If a first tier subcontractor subject to the requirements of the WTHP provides only supervision, contract management, or materials, and subcontracts a portion of its work to a second tier subcontractor, the requirements of the WTHP shall apply to the second tier subcontractor, even if the resulting second tier subcontract is less than $100,000, as long as the second tier subcontractor provides labor hours on the project job site.
6.2 Work of a prime or first tier subcontractor shall not be divided into smaller subcontracts for the purpose of avoiding the requirements of the WTHP.
SECTION 7 – JOB CLASSIFICATIONS
7.1 Apprenticeship training provisions apply, without exceeding the apprenticeship ratios, in each trade that a Contractor employs on the project.
7.2 Job classifications initially shall be determined by the Contractor or subcontractor hiring the labor subject to program requirements.
7.3 Job classifications selected by the Contractor or subcontractor will be disregarded if the Contractor or subcontractor fails to designate those classifications in good faith or selects the classifications to avoid program requirements. City staff may take any action necessary to ensure that job classifications are accurate and that training is being provided in the correct craft or trade.
7.4 Mischaracterization of job classifications does not relieve a Contractor or subcontractor from fulfilling the requirements of the WTHP. If it appears that the Contractor or subcontractor has mischaracterized job classifications, the City is entitled to require compliance with program requirements and training within the appropriate trade or craft.
7.5 Failure to train or failure to provide training in the correct trade or craft is a violation of program requirements and permits the imposition of liquidated damages. Funds collected as a result of failure of a Contractor to comply with the Workforce Training & Hiring Program, shall be placed in a “Workforce Training Fund” and monies will be distributed to programs that support apprenticeship efforts.
SECTION 8 – APPRENTICESHIP PROGRAM ALTERNATIVES
In the event there is no state approved apprenticeship program in the trade employed on a project, the Contractor may be offered the following alternatives:
8.1 The Contractor shall provide a comparable level of training in another craft or trade, provided that this will not violate the apprenticeship ratios established by the Bureau of Labor and Industries. As part of this option, the Contractor would be required to contact one of the state-approved pre-apprenticeship programs, select a pre-apprentice, and provide construction work experience to that individual on the jobsite:
Pre-apprentices must be paid journeyman wages, as they are not state-registered apprentices.
8.2 Provide an outline of an in-house training program for new hires.
SECTION 9—LIQUIDATED DAMAGES
Liquidated damages will be assessed if a Contractor fails to comply with the Workforce Training & Hiring Program. Damages will be calculated based on the training hours not provided at a rate of $250 per day. For example, if the Contractor was required to provide 200 hours of carpenter training (20% of $1,000 total carpenter hours), and the Contractor only provided 150 training hours, then the difference (50 hours) is divided by 8 (one day of work) to determine the number of days of undelivered training. (50/8=6.25 x $250=$1,562.50).
9.1 The Division’s Compliance Specialist shall send out a letter to the Contractor explaining the cause of the liquidated damages, and the amount they will be charged.
The Contractor shall make out a check for the damages to the City of Portland, and send it to Procurement Services.
9.2 Procurement Services shall use the money collected to be granted to organizations supporting the Workforce Training & Hiring Program goals.
Adopted by Chief Procurement Officer August 6, 2012.
Filed for inclusion in PPD August 7, 2012.